Court of Appeal for Ontario

Citation: Walsh v. Kapusin, 2010 ONCA 371

Date: 2010-05-19

Docket: C50153

Before: Goudge, Sharpe and Armstrong JJ.A.

Between:

Dan Walsh

Plaintiff (Appellant)

and

Kristina Kapusin

Defendant (Respondent)

Counsel:

John Zuber, for the appellant

Richard Horst, for the respondent

Heard and released orally: May 17, 2010

On appeal from the order of Justice Kendra D. Coats of the Superior Court of Justice dated February 6, 2009, sitting with a jury.

ENDORSEMENT

[1] The primary issue raised by the appellant is the misstatement of law made by respondent’s counsel in opening.

[2] In our view, the immediate correction made by the trial judge clearly told the jury to disregard what counsel had just said and to take the law only from the trial judge. In her charge, the trial judge made absolutely explicit that the impugned statement of law made in opening was wrong, and that there is no presumption as asserted there by counsel. In our view, this was sufficient to ensure a fair trial.

[3] In his factum the appellant raised other complaints about the comments by respondent’s counsel in opening. We agree with the trial judge that none of these were serious enough to warrant express correction or striking the jury. Neither individually nor taken together did these comments work an injustice.

[4] The appeal must be dismissed. Costs to the respondent fixed at $5,000.00 inclusive of disbursements and GST.

“S. T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“Rob P. Armstrong J.A.”